Privatizing Human Rights? Creating Intellectual Property Rights From Human Rights Principles

June 2015

Privatizing Human Rights? Creating Intellectual

Property Rights From Human Rights Principles

David S. Welkowitz

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Recommended Citation

Welkowitz, David S. (2013) "Privatizing Human Rights? Creating Intellectual Property Rights From Human Rights Principles,"Akron Law Review: Vol. 46 : Iss. 3 , Article 3.

675

P

H

R

?

C

I

P

R

H

R

P

I.

Introduction ... 676

II. The European Convention on Human Rights:

Background and Relevant Provisions ... 679

A.

Background ... 679

B.

Pertinent Provisions of the Convention for IP

Rights ... 681

III. Key Principles for IP Rights Expansion ... 683

A.

Starting Points:

Von Hannover v. Germany

—The

ECHR

’

s Decision ... 683

B.

Von Hannover

As a Basis for Creating Privately

Enforceable Rights: the Affirmative Obligations of

Member Countries to Enforce the Convention ... 686

C.

Von Hannover

and the Balance of Free Expression

and Privacy... 688

IV.

The Deference Afforded Member States: Margin of

Appreciation ... 690

V.

Creating Celebrity Rights Under Article 8 ... 692

VI.

The Extension of IP Rights Through Article 10 of the

Convention... 695

VII.

Extending IP Rights Through Article 1—Foundational

Principles ... 696

A.

The General Principles of the ECHR

’

s Article 1

Methodology ... 697

B.

“

Possessions,

”

“

Interference,

”

and Private Rights ... 699

C.

The Potential of Article 1 Further Revealed:

* _{Professor of Law, Whittier Law School. A.B. 1975, Princeton University; J.D. 1978, New York}

University. ©2012 by David S. Welkowitz. I would like to thank Professors Justin Hughes and Roberta Rosenthal Kwall for their excellent comments on earlier versions of this article. The article benefited from their insights. Errors and omissions are, of course, my own responsibility.

Anheuser-Busch v. Portugal

... 701

VIII.

Using Article 1 to Create or Expand IP Rights:

Examples ... 703

A.

Possible Trademark and Related Rights

Developments from Human Rights ... 703

B.

A Property-Based Right of Publicity? ... 707

C.

Article 1 and Trade Secret Law ... 709

D.

A Mandate for Copyright? ... 711

E.

Moral Rights ... 713

F.

Rights to Traditional Knowledge ... 717

IX.

Some Cautionary Observations Regarding the Use of

the Convention in Intellectual Property Cases ... 720

A.

Who Are the Primary Beneficiaries of Expanded

Rights Under the Convention? Follow the Money .... 720

B.

Expanding Rights by Affirmative Obligation ... 721

C.

Complications for Other Multilateral Agreements ... 722

D.

The

“

Cheapening

”

of Human Rights? ... 724

X.

Conclusion ... 726

I. INTRODUCTION

When one contemplates the universe of human rights violations, intellectual property rights probably are not first, or even tenth, on the list of things that come to mind. Human rights violations usually call to mind such things as violence against a civilian populace by government authorized (or government incited) forces, suppression of unpopular views, violations of fundamental due process rights, especially regarding criminal trials, and so on. If one contemplates economic issues at all under the rubric of human rights, it probably will be in the form of a population living in poverty, educational deprivations, and the like, again normally perpetrated (or neglected) in some manner by persons acting on behalf of or at the behest of a government. Private harms of the sort normally at issue in intellectual property situations ordinarily are not the stuff of human rights issues.1 Thus, you may be surprised to

1. This is not to say that intellectual property issues do not involve government action. Some intellectual property problems clearly do involve governmental agencies, whose approval may be required before certain intellectual property rights come into existence. In the United States, patents must be issued by the Patent and Trademark Office (PTO) before patent rights exist and PTO review is required before trademark registrations are issued. Trademark rights in the United States can exist without governmental approval, though certain trademark rights accrue only upon registration. In other countries, trademark rights exist only after registration with the government.

learn that human rights agreements, such as the Universal Declaration of Human Rights, contain express provisions favoring the existence of intellectual property rights.2 You may be equally surprised to learn that the European Court of Human Rights (“ECHR”), the designated arbiter of claims brought against countries for violations of the European Convention on Human Rights (the “Convention”), has heard a number of cases involving intellectual property rights, including cases brought by corporate entities.3 In our globalized economy intellectual property rights holders have begun to invoke human rights laws and treaties to protect their interests.4 These uses of human rights agreements raise a number of interesting and potentially troubling questions, especially for the future of human rights enforcement. The purpose of this paper is to examine some of those questions.

This article focuses on one human rights treaty, the Convention, and the possible uses of its provisions to secure and expand intellectual property rights (“IP rights”). Although the Convention does not contain any provision specifically referencing IP rights, it does contain several provisions that could be used to expand IP rights. Furthermore, the existence of a substantial body of interpretive case law from the ECHR affords us a more detailed perspective on the manner in which the Convention could be used to further IP rights. Finally, the group of countries adhering to the Convention, though all part of Europe, represent a somewhat diverse collection of governments, from the U.K. to Germany, to the Czech Republic, to the former constituent states of the Soviet Union (including Russia), to Turkey. Although not completely representative of a range of possible human rights viewpoints, it is a sufficiently diverse group to provide a useful window into the problem.5

See, e.g., C. PROP. INTELL. 712-1 (Fr.). Copyrights in U.S. works must be registered with the Copyright Office before a suit is initiated. 17 U.S.C. § 411(a) (2012).

2. Article 27(2) of the Universal Declaration of Human Rights provides: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), available at http://www.un.org/en/documen ts/udhr (last visited July 20, 2011).

3. See, e.g., Balan v. Moldova, App. No. 19247/03, ¶ 34 (Eur. Ct. H.R. Jan. 29, 2008) (HUDOC); Anheuser-Busch, Inc. v. Portugal, App. No. 73049/01, (Eur. Ct. H.R. Jan. 11, 2007) (Grand Chamber).

4. Intellectual property is not the only strange bedfellow with human rights. Hedge funds threatened to go to the ECHR if Greece were to default on its debts. Landon Thomas Jr., Hedge Funds May Sue Greece if it Tries to Force Loss, N.Y. TIMES, Jan. 18, 2012, at B1.

5. See Wojciech Sadurski, Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council

In a 2008 article, Professor Laurence Helfer outlined several possible frameworks that the ECHR might use to review intellectual property disputes under one provision of the Convention: Article 1 of the First Protocol.6 I do not propose to challenge either Professor Helfer’s premises or his concerns that certain approaches to the problem by the ECHR could have untoward consequences for the stability of IP rights and for human rights enforcement.7 However, I do intend to suggest several ways that the ECHR could become enmeshed in IP rights disputes, not only under Article 1, but under other provisions of the Convention, such as Article 8 (dealing with rights of privacy) and Article 10 (dealing with free speech and free press). I will suggest that the ECHR’s case law makes it increasingly likely that IP rights holders and potential rights holders will invoke the Convention to secure and expand IP rights. I do so not from a conviction that the ECHR should be involved in such matters, or that the court should expand IP rights, but because I believe that the ECHR’s involvement is inevitable and that its precedent makes IP rights expansion not unlikely. Thus, to the extent that human rights advocates believe that such involvement by the ECHR will have negative consequences, this article can serve as a wake-up call to the possible world that lies ahead.

The article begins with a brief examination of the Convention, followed by a discussion of provisions relevant to IP rights and some recent cases in the ECHR that raised the issue of using human rights provisions in an intellectual property context. Building on these cases and provisions, the article raises the following issues: (1) In what ways could the Convention be interpreted to expand or even create particular IP rights?; (2) Will the use of the Convention in these situations have unforeseen effects on IP rights as they are now understood?; (3) Who are the likely beneficiaries of the use of the Convention in intellectual property cases?; (4) What effect could the use of the Convention have on attempts to create a more global intellectual property law?; and (5)

of Europe, and the Idea of Pilot Judgments (Nov. 4, 2008) (unpublished Legal Studies Research Paper No. 08/135, University of Sydney Law School) at 4, available at http://ssrn.com/abstract=1295652 (noting the diversity of the European Union).

6. Laurence R. Helfer, The New Innovation Frontier? Intellectual Property and the European Court of Human Rights, 49 HARV. INT’L L.J. 1 (2008). As explained more fully below, Article 1 of the First Protocol is a Convention provision that protects property rights. It is somewhat analogous to the Takings Clause of the United States Constitution, but has important differences as well. U.S. CONST., amend. V. For a more general discussion of human rights and IP rights see Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U.C. DAVIS L. REV. 971 (2007); Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. DAVIS L. REV. 1039 (2007).

Could such uses weaken human rights protections in more traditional situations?

II.THE EUROPEAN CONVENTION ON HUMAN RIGHTS:BACKGROUND AND RELEVANT PROVISIONS

A. Background

The European Convention on Human Rights arose from the rubble of World War II and the human rights abuses during the period from the end of World War I to the end of World War II. In May, 1949, ten countries signed the Treaty of London, establishing the Council of Europe.8 A year and a half later, in November, 1950, the members of the Council signed what is formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms—the European Human Rights Convention.9 The Convention has been amended by fourteen protocols since its inception, adding to the list of rights protected.10 The Convention is administered by the Council of Europe.11

The Convention now has forty-seven signatories, half of which have been added since the beginning of 1990.12 All of the members of the European Union are also members of the Council of Europe and adhere to the Convention.13 The potential reach of the Convention is thus much broader than the European Union. Although the Council of Europe does not have enforcement mechanisms as robust as those of the EU, this does not leave the Convention impotent. The Council has its own judicial body, the European Court of Human Rights, based in

8. See The Council of Europe in Brief, COUNCILOF EUROPE,

http://www.coe.int/aboutCoe/index.asp?page=datesCles&l=en (last visited May 2, 2013).

9. European Human Rights Convention, Sep. 3, 1953, 213 U.N.T.S. 221 [hereinafter Convention]. The text of the Convention can be found at http://conventions.coe.int/treaty/en/Treatie s/Html/005.htm (last visited May 2, 2013). The United Nations already had promulgated the Universal Declaration of Human Rights, supra note 2, in 1948. See History of the Document, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, www.un.org/en/documents/udhr/history.shtml (last visited Oct. 8, 2012).

10. See Treaty Office, COUNCILOF EUROPE,

http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?MA=3&CM=7&CL=ENG (last visited Oct. 8, 2012).

11. The Council has a web site providing a portal for its activities. See www.coe.int (last visited Mar. 20, 2012).

12. Many of the new members, including Russia, were former Soviet Bloc countries, or were part of the former Soviet Union. See 47 Counties, One Europe, COUNCIL OF EUROPE, www.coe.int/aboutCoe/index.asp?page=47pays1europe&l=en (last visited Feb. 12, 2012).

13. _{Great Britain has incorporated the Convention into its Human Rights Act 1998—at least}

regarding actions of public authorities. See, e.g., Campbell v. MGN Ltd., [2004] E.M.L.R. 15 (H.L.) [¶ 49]; Human Rights Act, 1988, c. 42 (U.K.).

Strasbourg, France.14 The Strasbourg Court15 hears cases brought by individuals against countries alleged to have violated the Convention,16 and issues written decisions that include a rationale. Although the ECHR has no direct enforcement vehicle, members of the Council of Europe (whose members are contracting parties to the Convention) have agreed to abide by the Court’s decisions.17 And, to a great extent, it appears that they do so, at least in Western Europe.18

The Convention also influences European law through implementation of the Convention into the domestic law of various countries. Great Britain’s 1998 Human Rights Act did so, and its courts have looked to the decisions of the ECHR for interpretive guidance.19 Although the EU has not adopted the Convention as EU law, its principles have been incorporated into the jurisprudence of the European Court of Justice (“ECJ”).20 Both of these mechanisms tend to make the Convention a part of the legal regimes of member countries.21

14. The Court was created in 1959. Prior to November 1, 1998, human rights complaints were handled in the first instance by the Commission on Human Rights, which was created in 1954. See The Court in Brief, EUROPEAN COURT OF HUMAN RIGHTS,

http://www.echr.coe.int/NR/rdonlyres/DF074FE4-96C2-4384-BFF6-404AAF5BC585/0/Brochure_en_bref_EN.pdf (last visited July 21, 2011). It was not until Protocol #11 was adopted in 1998 that a full-time court was established and that member states were required to allow individual complaints to be brought against them (previously the country had to consent to such suits) as opposed to complaints by one member country against another.

15. For convenience and to distinguish it from the European Court of Justice, I will sometimes refer to the European Court of Human Rights as the Strasbourg Court.

16. Convention, supra note 9, at art. 34. Article 34 of the Convention gives individuals the right to bring actions in the ECHR. Article 33 gives member countries the right to “refer to the Court any alleged breach of the provisions of the Convention” by another member country. Id. at art. 33.

17. See id. at art. 39, ¶ 4 (dealing with friendly settlements); Id. at art. 46, ¶ 2 (dealing with judgments). The Committee of Ministers of the Council is responsible for the execution of the ECHR’s judgments. It maintains a Department for the Execution of Judgments of the Court. The Committee can refer cases to the ECHR if, inter alia, a country is refusing to abide by a judgment.

18. See, e.g., Von Hannover v. Germany, App. No. 59320/00 (Eur. Ct. H. R. July 28, 2005) (Judgment—Just Satisfaction—Friendly Settlement) (HUDOC) (Germany agrees to pay €115,000 in compensation and expenses). Moreover, to the extent that Convention member countries wish to join the EU, their willingness to abide by the ECHR’s interpretation of the Convention no doubt will be relevant to the admission decision. Many countries directly implement the ECHR’s judgments. See Execution of Judgments of the ECHR, COUNCIL OF EUROPE, www.coe.int/t/dghl/monitoring/execution/Presentation/About_en.asp (last visited Feb. 16, 2012).

19. See Campbell v. MGN Ltd., [2004] E.M.L.R. 15 (H.L.) [254-55]; Ferdinand v. MGN Ltd., [2011] EWHC 2454 (Q.B.).

20. See, e.g.,Andrew Williams, Human Rights and the European Court of Justice: Past and Present Tendencies (Apr. 5, 2011) (unpublished Legal Studies Research Paper No.2011-06, University of Warwick School of Law) at 5, 9-11, available at http://ssrn.com/abstract=1803138.

21. But cf. Murray v. Express Newspapers plc, [2007] EWHC 1908 [¶¶ 60-62] (Ch.D.) (British courts are bound to follow House of Lords decisions in cases of conflict with European

B. Pertinent Provisions of the Convention for IP Rights

Undoubtedly, the ECHR influences the laws of member states. But this still leaves the question: what is the connection between the Convention and intellectual property? To answer this question, we need to identify provisions of the Convention pertinent to IP rights and discuss the methodology used by the ECHR to decide cases brought under those provisions.

Because we are discussing intellectual property, it seems sensible to start with a provision dealing with property rights. The Convention contains such a provision, namely Article 1 of the First Protocol, which provides as follows:

Protection of Property:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.22

Article 123 looks a bit like the Takings Clause of the Fifth Amendment to the United States Constitution.24 That is, it appears to protect against a governmental appropriation of property. The Constitution refers to “private property” being “taken” while Article 1 refers to “peaceful enjoyment of . . . possessions.” These are not necessarily identical concepts, although, as indicated in the discussion below, the concept of a “possession” is very similar to “property.”25 It may seem a stretch to apply Article 1 to intangible intellectual property rights; however, it is notable that the United States Supreme Court has applied the Takings Clause to intellectual property.26 Article 1 was the focus of Professor

Court of Human Rights decisions).

22. See Convention, supra note 9, at protocol 1, art. 1.

23. References to “Article 1” should be presumed to refer to Article 1, First Protocol, unless otherwise specified.

24. The Takings Clause provides: “nor shall private property be taken for public use, without just compensation.” U.S. CONST., amend. V.

25. The concept of a “possession” under Article 1 is discussed infra text at notes 123 to 136. It is also worth noting that the title of Article 1 refers to “property,” even if the text of the provision does not.

Helfer’s discussion of the ECHR’s approach to IP rights disputes.27 The ECHR has held that Article 1 is applicable to IP rights,28 and Article 1 will play an important role in the analysis to be presented here. However, there are two other provisions of the Convention that are less directly related to property rights, but whose interpretation may have a significant impact on IP rights and on the application of Article 1 to IP cases. Those two provisions are Article 8 and Article 10 of the Convention, which provide, respectively, as follows:

Article 8—Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.29

Article 10—Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the

property under the Takings Clause). But cf. Zoltek Corp. v. United States, 442 F.3d 1345, 1349-53 (Fed. Cir. 2006) (patentee could not use Takings Clause as basis for claim against government for using patented invention).

27. Helfer, New Innovation, supra note 6.

28. See, e.g., Balan v. Moldova, App. No. 19247/03, ¶¶ 34-35 (Eur. Ct. H.R. Jan. 29, 2008) (copyright); Anheuser-Busch, Inc. v. Portugal, App. No. 73049/01, ¶ 10 (Eur. Ct. H.R. Oct. 11, 2005) (Chamber opinion); Anheuser-Busch, Inc. v. Portugal, App. No. 73049/01 (Eur. Ct. H.R. Jan. 11, 2007) (Grand Chamber) (trademark registration application).

disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.30

At first glance, it might not appear that these articles have any direct connection with intellectual property. Article 10, the rough analogue to the First Amendment in the United States, clearly could limit IP rights, but it seems an unlikely source for creating or expanding them. However, as discussed below, the manner in which the right to free expression is interpreted may make it less of a barrier to IP rights than one might believe, and may make it a source of IP rights. Article 8, particularly subsection 2, appears to afford protection from unwarranted governmental intrusion. Nevertheless, as will be seen, Article 8 is a broader and more affirmative right than it may appear on its face, possibly giving rise to IP rights.31

These three provisions form the basis of the argument that the Convention may be used to expand intellectual property rights.

III.KEY PRINCIPLES FOR IPRIGHTS EXPANSION

A. Starting Points: Von Hannover v. Germany—The ECHR’s Decision

Although it might seem more logical to begin with Article 1, the property rights provision, I prefer to begin with Article 8, because its jurisprudence affects the analysis of other provisions, including Article 10 and Article 1. One decision from the ECHR in particular brought privacy issues to the forefront of IP rights and related rights, and provides a convenient starting point for the discussion of the ECHR’s analytical framework. That case, Von Hannover v. Germany,32 was a suit by Princess Caroline of Monaco, complaining that photographers were invading her privacy by taking (and publishing) pictures of her and her family in various non-official public and private settings.

In Von Hannover, Princess Caroline of Monaco, who lives most of the time in Paris, complained about a number of photographs published by three German magazines.33 The photographs included several of her

30. Id. at art. 10. 31. See infra Part III. B.

32. Von Hannover v. Germany, App. No. 59320/00 (Eur. Ct. H.R. June 24, 2004). As discussed below, there was a second Von Hannover case in the ECHR, decided eight years later. It also dealt with photographs taken of Princess Caroline and her family. Von Hannover v. Germany (no. 2), App. No. 40660/08 (Eur. Ct. H.R. Feb. 7, 2012).

33. The pictures were taken while the Princess was in France, where she maintains an apartment. Von Hannover, App. No. 59320/00 at ¶ 8. However, they were published by German

with her children, some of her in public places, one in a restaurant (with a boyfriend), and some taken of her while she was on vacation.34 She sued the publications in the German courts, claiming violations of her right to privacy, her rights to control her image under the German Copyright Act, and, perhaps notably, her personality rights under the German Basic Law.35 The trial court and first level appellate court ruled that German law did not grant relief because of Princess Caroline’s status as a kind of public figure.36 On further appeal, the court ruled that the photos of her in the restaurant—as a “secluded place” —were a violation of her right to privacy, but that the others were not.37 From this ruling Princess Caroline appealed to the Federal Constitutional Court of Germany,38 whose ruling the ECHR quoted at some length.

The Federal Constitutional Court issued what was considered a landmark decision, ruling that, although publication of some of the pictures in question violated Princess Caroline’s right to privacy, several others did not.39 In its ruling, the Federal Constitutional Court balanced her right to privacy under German law against the right of free expression found in the German Basic Law.40 In its opinion, the court specifically held that entertainment is worthy of protection under the concept of free expression.41 It also held that the press was entitled to a certain “margin of manoeuvre” to decide what is in the public interest to print.42 Applying these principles, the court found that some of the

periodicals. Id. at ¶ 10. 34. Id. at ¶¶ 11-17.

35. Id. at ¶ 18. It is also interesting that her suit—in German courts—sought relief against the publications under French law. Id. at ¶ 19.

36. Id. at ¶¶ 19, 21. The German court found her to be a figure “par excellence.” Id. at ¶¶ 19, 21, 23. The courts enjoined republication of the photographs in France, but under French law. Id. at ¶ 19.

37. Id. at ¶ 23. 38. Id. at ¶ 24. 39. Id. at ¶ 25.

40. Id. at ¶ 25 (¶ 1 of the quoted portion of the Constitutional Court’s opinion).

41. Id. at ¶ 25 (quoting from paragraph (b) of the Constitutional Court’s opinion). A portion of the German court’s opinion was as follows:

The fact that the press fulfills the function of forming public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinions and entertainment are not opposites. Entertainment also plays a role in the formation of opinions. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment (“infotainment”). Consequently, many readers obtain information they consider to be important or interesting from entertaining coverage.

pictures, taken while she was with her children and in secluded areas, were overly intrusive.43 Others, however, even some in semi-private locations, were deemed legitimate because of her status as a public figure.44 After further rounds of proceedings in the German courts, the earlier results were reaffirmed.45 Dissatisfied with the German courts’ resolution, Princess Caroline took her case to the European Court of Human Rights. That court ruled in her favor.46

Much like the Federal Constitutional Court of Germany, the ECHR considered the matter to require balancing the right to privacy, found in Article 8 of the Convention, and the right to free expression, found in Article 10.47 Notably, although the ECHR quoted extensively from the opinions of the German courts (the lower courts as well as the Federal Constitutional Court), it gave little if any deference to the balance between privacy and free expression drawn by the German courts, using rights under German law analogous to those provided by the Convention.48 The German courts emphasized Caroline’s status as a public figure. Moreover, the German courts held that free press rights encompass entertainment as well as “hard” news. In their view, this afforded the press more leeway in its reporting. By contrast, the ECHR accorded little credence to the public figure status of the Princess, noting that she had few public duties as a princess, and that the pictures were not reflective of those duties.49 Instead, the court found that the pictures simply satisfied the public’s curiosity about the lifestyle of a princess, which the court believed was an insufficient basis to override her right to privacy.50 Thus, the court found in favor of Princess Caroline and against the state of Germany (the ECHR issues judgments against

43. Id. at ¶ 25.

44. Id. at ¶ 25 (Constitutional Court’s opinion). 45. Id. at ¶¶ 19-38.

46. Id. at ¶¶ 78-80. 47. Id. at ¶ 58.

48. The issue of the proper level of deference—called a “margin of appreciation” by the ECHR—is discussed infra Part IV.

49. Id. at ¶¶ 62, 64 (“The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant’s private life.”).

50. Id. at ¶¶ 65-66 (“The Court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public. In these conditions freedom of expression calls for a narrower interpretation.”); id. at ¶¶ 72-74, 77 (“The Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.”).

Convention member states).51

B. Von Hannover as a Basis for Creating Privately Enforceable Rights: the Affirmative Obligations of Member Countries to Enforce the Convention

The right to privacy and its supremacy (at least in some contexts) over free expression may lead directly to an IP right, namely the right of publicity. In the United States, the right of publicity, which is now widely recognized as a property right, had its origins in the tort concept of the right to privacy.52 And it may be, as discussed below, that the ECHR’s privacy decisions will ripen into a property right protectable under Article 1, as well as Article 8. However, the importance of the Von Hannover decision transcends its basic result. The opinion provides a framework that bridges the gap between human rights as a protection against unwarranted governmental intrusion and human rights as a vehicle to remedy harms perpetrated by private actors. The intrusion of which Princess Caroline complained was not in any way the product of state action directed against her. It was an entirely private intrusion. Although her suit in the ECHR was against the German government, the gravamen of her lawsuit was a dispute between private parties—her lawsuit in the German courts was against various publications. Essentially, her claim in the ECHR was that German law did not afford her sufficient protection against private intrusions, and therefore the German government was not protecting her privacy as required by Article 8 of the Convention. By ruling in favor of Princess Caroline, the ECHR effectively created an affirmative right from Article 8, rather than simply a negative right. In other words, Article 8 did not just protect Princess Caroline from governmental intrusions (a negative right); it required the government to shield her from the intrusions of others, even to the extent of providing an appropriate civil action in its courts (an affirmative right).53 The imposition of an affirmative obligation on the

51. Id. at ¶ 80. The ECHR was asked to issue a judgment for approximately €142,800, but reserved the question of damages for later decision. Id. at ¶ 85. A settlement of the judgment in the amount of €115,000 was later recorded. Von Hannover v. Germany, App. No. 59320/00 (Eur. Ct. H.R. July 28, 2005) (Just Satisfaction—Friendly Settlement).

52. See e.g., Lugosi v. Universal Pictures, 603 P.3d 425 (Cal. 1979) (rights of publicity arose from privacy tort); CAL. CIV.CODE § 3344.1(b) (West 2013) (recognizing a property right); ARIZ. REV.STAT.ANN. § 12-761(G) (2007) (soldier’s right of publicity); 765 ILL.COMP.STAT.ANN. 1075/15 (West 2013); IND.CODE ANN. § 32-36-1-7 (West 2002); OKLA.STAT.ANN. tit. 12, § 1448(B) (West 2013).

53. Von Hannover, App. No. 59320/00 at ¶ 57 (“The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The

country to effectuate the right is a marked contrast to the Bill of Rights jurisprudence in the United States, which requires some form of state action in order for its provisions to be invoked.54 It is also a critical bridge between a system focusing on state actions and a system that contemplates the creation of new obligations without the necessity of state action. Thus, if the effectuation of the rights granted by the Convention requires a country to enact legislation (or create common law) that grants a cause of action to one private party injured by another private party, then the ECHR becomes a vehicle to effectuate those obligations. To put the matter into IP rights language, if the effectuation of any of the provisions of the Convention requires the creation or expansion of IP rights, then the ECHR will issue judgments that effectively require such creation or expansion.55

Moreover, there does not appear to be any textual reason why such an affirmative obligation would not be imposed with regard to the effectuation of any of the rights granted under Article 10 or Article 1, First Protocol. The first sentence of Article 8, which grants the right to privacy, does not invoke any notion of state action. It simply says that everyone is entitled to privacy.56 Similarly, Article 10 states that “[e]veryone has the right to freedom of expression,”57 and Article 1 states that “[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions.”58 There is no textual invocation of any state action or any indication that the right only insures against instances of state interference.59

applicable principles are, nonetheless, similar.”).

54. The affirmative obligation of states under Article 8 and other Convention provisions has been reaffirmed by the ECHR. See Von Hannover v. Germany (no. 2), App. No. 40660/08, ¶98 (Eur. Ct. H.R. Feb. 7, 2012) (Grand Chamber); Evans v. United Kingdom, App. No. 6339/05, ¶75 (Eur. Ct. H.R. Apr. 10, 2007) (Grand Chamber).

55. Von Hannover, App. No. 59320/00 at ¶57. The ECHR cannot directly order states to enact legislation. However, as noted earlier, an arm of the Council of Europe oversees compliance with the court’s judgments and will inquire about legislation needed to effectuate the court’s ruling. See A unique and effective mechanism, COUNCIL OF EUROPE, www.coe.int/t/dghl/monitoring/execution/Presentation/About_en.asp (last visited Feb. 16, 2012).

56. Convention, supra note 9, at art. 8. 57. Id. at art. 10.

58. Id. at protocol 1, art. 1.

59. The second paragraph of each of these provisions, like that of Article 8, allows the state certain leeway to protect other rights and interests by imposing some limitations on privacy, free expression, and property rights. But that does not eliminate the affirmative obligation created by the first paragraph. See, e.g., Lobanov v. Russia, App. No. 15578/03, ¶ 46 (Eur. Ct. H.R. Dec. 2, 2010) (alluding to affirmative obligations under Article 1).

C. Von Hannover and the Balance of Free Expression and Privacy The right to free expression is often a significant limitation on IP rights, including rights of celebrities. The ECHR’s treatment of the free expression argument in Von Hannover demonstrates that under the Convention, speech in a commercial context may not be given particularly strong protection.60 Since many IP cases implicate free speech concerns, this development would favor the rights of IP owners over the rights of unauthorized users. On the other hand, an affirmative obligation to promote freedom of expression could be invoked to create IP rights that further such expression.

The Von Hannover decision may not appear to be an IP case at all; it could be viewed as an ordinary tort case. Even without the right of publicity overtones, however, the case would be of interest to IP lawyers for several reasons. The decision made clear that the right of free expression does not trump other rights under the Convention. When two rights are potentially at odds, as in Von Hannover, the court must balance them, giving due regard for the ECHR’s view of the general societal values at stake. Although, as discussed further below, the ECHR often gives member state decisions a certain degree of deference—called a “margin of appreciation”61—in the case of Von Hannover, the court showed very little inclination to defer to the German courts’ own balancing of the rights, even though the balance struck by the German courts was not patently unreasonable.62 Moreover, the right to know about (and perhaps make use of) facts of a celebrity’s life was expressly deemed to have relatively little weight in the free expression balance.63

Subsequently, the ECHR expounded on the role of free expression in several cases involving celebrity photographs, including a second case

60. Id. at ¶¶ 59, 63-64. In addition to its statements in Von Hannover, the ECHR’s attitude toward commercial speech can be found in some of its unfair competition cases. See generally Maya Hertig Randall, Commercial Speech Under the European Convention on Human Rights: Subordinate or Equal?, 6 HUM.RTS.L.REV. 53 (2006).

61. See infra Part IV. Cf. A v. Norway, App. No. 28070/06, ¶ 66 (Eur. Ct. H.R. Apr. 9, 2009); Evans v. United Kingdom, App. No. 6339/05, ¶77 (Eur. Ct. H.R. Apr. 10, 2007) (Grand Chamber).

62. The margin of appreciation can also reflect the ECHR’s view of the existence of a European consensus on the issue. See Mosley v. United Kingdom, App. No. 48009/08, ¶ 124 (Eur. Ct. H.R. May 10, 2011) (granting a greater margin of appreciation to the state’s refusal to act where there was no European consensus on whether the press must give advance notice of intent to publish a story about a prominent figure).

63. Von Hannover v. Germany, App. No. 59320/00, ¶65 (Eur. Ct. H.R. June 24, 2004. Accord Mosley, App. No. 48009/08 at ¶114.

brought by Princess Caroline (and her husband).64 In one case, the ECHR found a violation of Article 10, where a newspaper was prevented from publishing a picture of an actor together with articles concerning his arrest and guilty plea on charges of drug possession.65 But this case involved the press’s oversight function vis a vis the criminal process and can be distinguished from Von Hannover (no. 1). In another case, the ECHR upheld a decision of the British House of Lords66 that prevented publication of photographs of model Naomi Campbell arriving at a drug rehabilitation facility.67 In a second Von Hannover case, the ECHR upheld the German courts’ decision to allow publication of a picture of Princess Caroline and her husband at St. Moritz together with an article about her then-ailing father and the contrast with her sister’s decision to stay with the father.68 The ECHR propounded five factors relevant to the balancing process: (1) the contribution to a debate of general interest; (2) how well known the person is and what is the subject of the report; (3) prior conduct of the person concerned; (4) content, form and consequences of the publication; and (5) circumstances in which the photos were taken.69 Although these factors clarify the proper methodology, they do not materially alter the boundaries of protection from the first Von Hannover decision. In the second Von Hannover case, the ECHR stressed the informative value of the article and noted that the German courts had prevented publication of photographs that were less informative.70 Thus, the impact of the first Von Hannover decision apparently was to narrow Germany’s previously broader tolerance of press intrusion into the lives of public figures.

Although the later cases stressed the importance of the press in a democratic society, they do not appear to have markedly altered the

64. Von Hannover v. Germany (no. 2), App. No. 40660/08 (Eur. Ct. H.R. Feb. 7, 2012) (Grand Chamber); Axel Springer A.G. v. Germany, App. No. 39954/08 (Eur. Ct. H.R. Feb. 7, 2012) (Grand Chamber); MGN Ltd. v. United Kingdom, App. No. 39401/04 (Eur. Ct. H.R. Apr. 18, 2011).

65. Axel Springer, at ¶¶ 10-15, 110-111. The actor’s name was not revealed by the court; he was referred to as person X.

66. In 2009, the House of Lords was replaced by the Supreme Court of the United Kingdom as the supreme judicial body of the country. See History, THE SUPREME COURT (UK), www.supremecourt.gov.uk/about/history.html (last visited Mar. 1, 2012).

67. MGN Ltd., App. No. 39401/04 at ¶10, 156. The ECHR did find a violation of Article 10 in another aspect of the case—the amount of “success fees” (legal fees) of Naomi Campbell imposed on MGN. Id. at ¶¶218-220. Cf. Mosley v. United Kingdom, App. No. 48009/08 (Eur. Ct. H.R. May 10, 2011) (declining to mandate that celebrities be informed in advance of any potentially damaging publications).

68. Von Hannover (no. 2), App. No. 40660/08 at ¶¶ 15-20. 69. Id. at ¶¶ 108-113.

perception that entertainment news is considered of lesser value than other news.71

IV.THE DEFERENCE AFFORDED MEMBER STATES:MARGIN OF

APPRECIATION

The doctrine of margin of appreciation is the ECHR’s mechanism for affording deference to the state in the manner of its implementation of the Convention. The doctrine is fraught with potential difficulties.72 If too much deference is given, it undercuts the universality of human rights guarantees and could allow countries to carry out seriously unfair policies that flout the spirit of the Convention. On the other hand, refusing to give deference in some circumstances cannot undermine important social and cultural values embedded in the legal norms of member countries. In practice, the doctrine appears to be unevenly applied. As discussed above, in the first Von Hannover case, the ECHR did not afford Germany any meaningful margin of appreciation for the German courts’ balancing of privacy and free expression. Yet, in other privacy cases, the court has afforded countries a significant margin of appreciation.73 The ECHR has identified one factor as being particularly

71. MGN, Ltd., App. No. 39401/04 at ¶¶ 139, 143 (“The Court considers the publication of the photographs and articles, the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure’s private life, cannot be deemed to contribute to any debate of general interest to society.”); Axel Springer A.G., App. No. 39954/08 at ¶ 78 (“Freedom of expression constitutes one of the essential foundations of a democratic society.”), Id. at ¶¶ 82-84 (discussing limits on Article 10, particularly those of Article 8). The ECHR continued this trend in Ashby v. France, Case No. 36769/08 (Eur. Ct. H.R. Jan. 10, 2013), where it rejected a claim that France violated Article 10 by prosecuting the petitioners for posting photographs of a fashion show online. The Court specifically noted that France’s actions were consistent with protecting the intellectual property of the fashion creators (fashions are protected by French copyright law), and that the state has greater leeway where the expression is for a commercial purpose. Id. at ¶¶ 39-42. See Hertel v. Switzerland, Case No. 59/1997/843/1049, ¶ 47 (Eur. Ct. H.R. Aug. 25, 1998) (while finding a violation of Article 10, Court said “a margin of appreciation is particularly essential in commercial matters, especially in an area as complex and fluctuating as that of unfair competition.”).

72. For further discussions of the issue, see, e.g., Paul Gallagher, The European Convention on Human Rights and the Margin of Appreciation (University College Dublin Law, Criminology & Socio-legal Studies, Working Research Paper No. 52/2011, 2011), available at http://ssrn.com/abstract = 1982661); Douglas Lee Donoho, Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights, 15 EMORY INT’L L.REV. 391 (2001).

73. See, e.g., Evans v. United Kingdom, App. No. 6339/08, ¶¶ 79, 81, 90 (Eur. Ct. H.R. Apr. 10, 2007) (state’s decision concerning destruction of stored embryos conceived via in vitro fertilization given “wide” margin of appreciation); Schalk v. Austria, App. No. 30141/04, ¶¶ 105-108 (Eur. Ct. H.R. Nov. 22, 2010) (state afforded margin of appreciation regarding same-sex marriage); A, B and C v. Ireland, App. No. 25579, ¶ 185 (Eur. Ct. H.R. Dec. 16, 2010) (state

important in the margin of appreciation—the existence or lack of a European consensus on the matter.74 Also identified as factors are the importance of the right to “an individual’s existence or identity,” which narrows the margin, and the need “to strike a balance between competing private and public interests or Convention rights,” which broadens the margin.75 But Von Hannover (no. 1) involved just such a competing rights circumstances with little evidence of a margin of appreciation.76 And in A, B, C v. Ireland,77 the ECHR deferred to Ireland’s law on abortion rights despite an apparent European consensus to the contrary.78

In property rights cases, there is a greater mention of the margin of appreciation, and some cases indicate a wider margin exists in such situations.79 However, the implementation of the margin of appreciation has not been particularly consistent in property rights cases, either. In two cases where a retroactive application of law deprived applicants of certain legal claims, the ECHR found violations of Article 1, despite acknowledging the margin of appreciation given to the state.80 In another case, a Chamber of the court found a violation where the applicant was deprived of its property by Britain’s adverse possession law, noting that the “wide” margin of appreciation may be overcome by a lack of “fair balance” and proportionality.81 The Grand Chamber,

afforded margin of appreciation regarding right to abortion).

74. See, e.g., Schalk, App. No. 30141/04 at ¶ 98; Mosley v. United Kingdom, App. No. 48009/08 ¶ 124 (Eur. Ct. H.R. May 10, 2011).

75. Evans, App. No. 6339/08 at ¶ 77.

76. In the second Von Hannover case, there was a more extensive discussion of the margin of appreciation, particularly in a competing rights situation. Von Hannover v. Germany (no. 2), App. No. 40660/08, ¶¶104-07 (Eur. Ct. H.R. Feb. 7, 2012). Ultimately, the German courts’ balancing was upheld in the second instance. Id. at ¶¶ 124-26.

77. App. No. 25579 (Eur. Ct. H.R. Dec. 16, 2010).

78. Id. at ¶ 235 (noting the existence of a consensus), Id. at ¶ 241 (finding Irish restrictions on abortion within its margin of appreciation).

79. See, e.g., Paeffgen GMBH v. Germany, App. No. 25379/04, 21688/05, 21722/05, and 21770/05, at 10 (Eur. Ct. H.R. 2007) (rejecting admissibility of complaints regarding laws relating to the improper use of domain names); Spadea v. Italy, App. No. 12868/87, ¶ 29 (Eur. Ct. H.R. Sept. 28, 1995) (rejecting challenge to Italy’s rent control law that deprived applicants of possession of their apartments for long periods of time; court noted the “wide margin of appreciation” given the state). See also Barrow v. United Kingdom, App. No. 42735/02, ¶ 35 (Eur. Ct. H.R. Aug. 22, 2006) (“The margin of appreciation available to the legislature in implementing social and economic policies should be a wide one.”).

80. Pressos Compania Navieca, S.A. v. Belgium, App. No. 17849/91, ¶¶ 37-39, 43 (Eur. Ct. H.R. Nov. 20, 1995); Maurice v. France, App. No. 11810/03, ¶¶ 83, 90-91 (Eur. Ct. H.R. Oct. 6, 2005) (noting a lack of proportionality).

81. J. A. Pye (Oxford) Ltd. v. United Kingdom, App. No. 44302/02, ¶¶ 44, 46, 70-75 (Eur. Ct. H.R. Nov. 15, 2005). See also Hutten-Czapeska v. Poland, App. No. 35014/97, ¶¶ 223-225 (Eur. Ct. H.R. May 17, 2006) (Polish rent control law violates Article 1) (Grand Chamber).

however, reversed, finding that the interference in this case was not disproportionate and that the system of land ownership was one in which the government was entitled to an especially wide margin of appreciation.82 Other cases also evidenced a greater willingness to defer to the member state’s law.83 The application of the doctrine is, therefore, somewhat unpredictable. Its operation may be contrasted with United States equal protection doctrine where the level of deference or scrutiny is more predictable and the outcomes, while not entirely predictable, are at least somewhat predictable based on the level of scrutiny.84 However, it is worth noting that the ECHR follows a somewhat analogous system when assessing the margin of appreciation afforded under Article 14, the Convention’s antidiscrimination provision.85

Given the relative unpredictability of the outcome even when a state has a wide margin of appreciation, it is difficult to assess whether the ECHR would defer to the state’s legislative process (or lack thereof) when deciding many of the issues discussed here.

V. CREATING CELEBRITY RIGHTS UNDER ARTICLE 8

Despite the fact that Article 8 appears to rest more on dignity

82. J.A. Pye (Oxford) Ltd., App. No. 44302/02 at ¶ 83 (“Such arrangements fall within the State’s margin of appreciation, unless they give rise to results which are so anomalous as to render the legislation unacceptable.”). One dissent, on behalf of five judges, found the application in a case of a registered owner to be disproportionate. Id. at ¶ 21 (Joint Dissenting Opinion of Judges Rozakis, Bratza, Tsatsa-Nikolovska, Gyulumyan and Šikuta). A second dissent, on behalf of two judges, found both a lack of proportionality and a failure of the adverse possession law to be in the general interest. Id. (Dissenting Opinion of Judge Loucaides Joined By Judge Kovler).

83. E.g., Spadea, App. No. 12868/87 at ¶¶ 28, 40 (rent control); Benet Czech, spol. S.R.O. v. The Czech Republic, App. No. 31555/05,¶¶ 35-40 (Eur. Ct. H.R. Oct. 21, 2010) (in seizure of company bank accounts pursuant to a criminal investigation of a company officer; “the Courts will respect the State authorities’ judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation.”); Air Canada v. United Kingdom, App. No. 18465/91, ¶¶ 38, 48 (Eur. Ct. H.R. May 5, 1995) (temporary seizure of airplane plus payment before any hearing).

84. Race-based distinctions receive the highest scrutiny; economically based conditions require only a “rational basis.” One exception may be discrimination based on sexual orientation, where the Supreme Court uses a rational basis test, but has recently struck down governmental actions. See Romer v. Evans, 517 U.S. 620, 635 (1996) (invalidating Colorado initiative that removed specific protections against discrimination based on sexual orientation); Lawrence v. Texas, 539 U. S. 558 (2003) (invalidating laws against homosexual sodomy). But cf. Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2008) (upholding Nebraska’s constitutional initiative precluding recognition of same sex marriage, civil union, or other similar same sex relationships).

85. See B v. United Kingdom, App. No. 36571/06, ¶ 56 (Eur. Ct. H.R. Feb. 14, 2012) (wide margin of appreciation in areas of social and economic policy).

interests than commercial interests, one can postulate something akin to a true right of publicity arising from this provision. As interpreted in Von Hannover, Article 8 provides a suitable foundation, by imposing an affirmative obligation on countries to protect privacy rights and by limiting the legitimate sphere of press freedom regarding celebrities. The ECHR may expand the right to privacy to protect a celebrity against unwanted merchandising on the grounds that it dishonors the celebrity’s name. In many countries in Europe the right to privacy is imbued with both dignity interests and rights of commercial exploitation.86 The ECHR could hold that these personality rights inform the interpretation of Article 8 and require a broader right to privacy, one that allows the individual wide ranging control over various forms of commercialization of his or her image.87

The simplestextension would be to a use that falsely implies that the celebrity endorses a particular product or service.88 Many celebrities certainly would view such a false endorsement as an indignity.89 Other unauthorized uses, such as merchandising, might also be deemed undignified and therefore invasive of a broad notion of privacy.90 Von

86. In Von Hannover, Princess Caroline brought a claim in the German courts under a provision of German copyright law, as well as privacy laws. Georgios Zagouras, Commercial Exploitation of the Personality and License Requirements for Satiric Advertisements Under German Law, 42 I.I.C. 74, 76-82 (2011) (discussing German cases on use of celebrities in advertising). See generally Eric H. Reiter, Personality and Patrimony: Comparative Perspectives on the Right to One’s Image, 76 TUL.L.REV. 673, 681-86 (2002); Elisabeth Logeais & Jean-Baptiste Schroeder, The French Right of Image: an Ambiguous Concept Protecting the Human Persona, 18 LOY.L.A. ENT. L.REV. 511, 516-17 (1998); Stephen R. Barnett, “The Right to One’s Own Image”: Publicity and Privacy Rights in the United States and Spain, 47 AM.J.COMP. L. 555 (1999); Susanne Bergmann, Publicity Rights in the United States and in Germany: a Comparative Analysis, 19 LOY. L.A.ENT.L.REV. 479, 479-80, 500-503 (1999).

87. In Burghartz v. Switzerland, App. No. 16213/90 (Eur. Ct. H.R. Feb. 22, 1994), the court held that Article 8 gives a person an interest in his name, such that the state cannot arbitrarily deny him the right to choose how his surname will be designated (married man wanted to use his wife’s family name, but precede it with his own). “As a means of personal identification and of linking to a family, a person’s name nonetheless concerns his or her private and family life.” Id. at ¶ 24. Although this case does not establish that a pecuniary interest in one’s name is a privacy right, it is not a large leap to say that a deceptive use of one’s name (e.g., a false endorsement) would implicate a privacy right.

88. The U.K. already has some precedent in this area. See Irvine v. Talksport Ltd., [2002] EWHC (Ch) [367].

89. See Waits v. Frito-Lay, Inc., 976 F.2d 1093, 1103 (9th Cir. 1992) (noting jury award of “$200,000 for injury to [Waits’] peace, happiness and feelings.”).

90. See Zagouras, Commercial Exploitation, supra note 86, at 82-85 (discussing merchandising cases). In Mosley v. United Kingdom, App. No. 48009/08 (Eur. Ct. H.R. May 10, 2011), the ECHR refused to mandate that member countries require a newspaper to give advance notice of any publications relating to the private life of a celebrity. Id. at ¶¶ 125-129. However, the ECHR was highly critical of the publications in question (which had been successfully sued in

Hannover’s requirement that the country give a private civil right of action to protect the claim creates the basis for a private civil action.

The argument in favor of a strong publicity right, particularly one grounded in Article 8, is not without some contrary precedent. For example, in Vorsina v. Russia,91 decided just months before Von Hannover, the ECHR refused the application of the granddaughters of a man whose portrait was used on bottles of beer. The court found that by giving the portrait in question to a local museum, the family “had agreed, in principle, that the portrait may be seen by others.”92 The court also found that the brewery’s use did not dishonor the family.93 This case involved a man who had been dead for several decades. That fact may have been important in the court’s decision (though it was not expressly mentioned in the court’s analysis). The court may have been uncertain about how to handle such inherited claims, and how to allocate “ownership” of the right after more than one generation. Moreover, the court’s finding that the use was not undignified indicates that a less dignified use (and the court did not define what that would be) might have led to a different result. On the other hand, its statement that the family had allowed the portrait to be seen publicly points to privacy, as opposed to simple dignity, as a basis for Article 8 claims.

Moreover, as discussed above, there is at least the potential for Article 10, the free expression provision, to enter the picture. In addition to the Axel Springer case, in Karhuvaara v. Finland,94 the ECHR recognized that Article 10 has some force in right to privacy matters. The court held that Finland violated Article 10 by criminally punishing a newspaper for publishing a story about a criminal trial, and identifying the defendant by name and by the fact that he was the husband of a member of Parliament.95 But the applicability of this judgment to

British courts) and was not completely unsympathetic to the plaintiff’s plea. Id. at ¶¶ 130-131. Granting a right of publicity against a commercial use of a celebrity’s identity seems less drastic than granting a prepublication right of notice, even if the latter is tempered by a “public interest” exemption. See id. at ¶ 131. In Mosley, the ECHR was concerned about inhibiting free and open debate. Id. at ¶ 132. However, the court’s view of the photographs in Von Hannover and MGN, Ltd. suggests that it would not view commercial uses of celebrity identities as contributing to a useful debate.

91. App. No. 66801/01 (Eur. Ct. H.R. Feb. 5, 2004).

92. Id. at *5. The Court did not consider the merits in a normal fashion; it ruled the application inadmissible, meaning it appeared to be “manifestly ill-founded.”

93. Id. It was not clear that the court was denying a claim under Article 8; it began this section by saying “assuming that Article 8” applies. The court did not consider Article 1 of the First Protocol.

94. App. No. 53678/00 (Eur. Ct. H.R. Nov. 16, 2004). 95. Id. at ¶¶ 54-55.

private civil actions must be tempered by the court’s references to the requirement of proportionality of the punishment96 and the heavy fines imposed by the government.97 Moreover, the case involved a political figure, not a mere celebrity.98 Thus, like Axel Springer, it can easily be distinguished from Von Hannover.

Another attempt to expand the right to privacy was turned aside by the ECHR when it refused to impose an obligation on the media to notify the subject in advance of a news report.99 Such advance notice would permit the subject to seek a preliminary injunction against publication; the ECHR recognized that this posed potential problems with Article 10’s free press guarantee and that there was no consensus among European countries on the need for such advance notice.100

On the other hand, these two cases did not involve endorsement or merchandising uses of the celebrity’s identity. Thus, the balance more easily tipped in the direction of Article 10 freedoms. In a commercial context, that balance may shift.101

In the United States, the right to privacy has morphed into a right of publicity, which is more like a property right and less like a dignity interest—it is assignable and, in most states, inheritable. The right described here under Article 8 is more like the U.S. right to privacy, in that the attention is unwanted. It is not a question of who obtains the commercial value of the celebrity’s identity, but a matter of precluding the use entirely. In a later section of this paper, I postulate a more property-like right of publicity under the Convention, but one that is attached primarily to Article 1, First Protocol.

VI.THE EXTENSION OF IPRIGHTS THROUGH ARTICLE 10 OF THE

CONVENTION

It can be—and has been—argued that the application of human rights standards is a positive development for intellectual property, in that it “humanizes” intellectual property rights, and forces courts to consider limitations based on the rights of those other than intellectual

96. Id. at ¶ 51. 97. Id. at ¶ 53.

98. Id. at ¶ 52. See Axel Springer A.G. v. Germany, App. No. 39954/08, ¶ 111 (Eur. Ct. H.R. Feb. 7, 2012) (Grand Chamber) (prohibition on publishing an article and photo of an actor who was arrested on cocaine related charges in a public place violated Article 10).

99. Mosley v. United Kingdom, App. No. 48009/08, ¶ 132 (Eur. Ct. H.R. May 10, 2011). 100. Id. at ¶¶124, 129.

101. Ashby v. France, Case No. 36769/08, ¶¶39-42 (Eur. Ct. H.R. Jan. 10, 2013); Hertel v. Switzerland, Case No. 59/19977/843/104, ¶47 (Eur. Ct. H.R. Aug. 25, 1998).

property rights holders.102 However, in view of the ECHR’s approach to free press, the degree to which the application of the Convention would humanize European intellectual property law is likely to vary widely, depending on the country in question.

But Article 10 could be used as more than a limitation. In theory, it might be the basis for extending IP rights as well. As a reminder, the pertinent language of Article 10 is as follows (with some emphasis supplied):

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.103

Building on the idea that the Convention creates affirmative as well as negative obligations, Article 10 could support an expansion of copyright.104 If, as is sometimes postulated in the U.S., copyright is an engine of free expression, one could argue for a robust copyright regime as a means of allowing one to “impart information and ideas.”105 No doubt this right would have to reflect a balance of the rights of others to free expression, and perhaps even some notion of proportionality, which is a common feature of ECHR jurisprudence.106

VII. EXTENDING IPRIGHTS THROUGH ARTICLE 1—FOUNDATIONAL

PRINCIPLES

Having laid an appropriate base for the application of the Convention to private disputes, we can now return to Article 1, First Protocol, as a more formidable foundation for the creation and/or extension of IP rights. Through a series of cases, the ECHR has established a methodology for analyzing problems under Article 1. The first task is to lay out that methodology. Once the framework has been

102. See generally Christophe Gieger, “Constitutionalising” Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union, 37 I.I.C. 371 (2006); A. Kampelman Sanders, Unfair Competition Law and the European Court of Human Rights: The Case of Hertel v. Switzerland and Beyond, 10 FORDHAM INTELL.PROP.MEDIA &ENT. L.J. 305 (1999).

103. Convention, supra note 9, at art. 10 (emphasis added).

104. See Appleby v. United Kingdom, App. No. 44306/98, ¶¶ 39-40 (Eur. Ct. H.R. May 6, 2003) (indicating the possibility of affirmative rights under Article 10). See also infra Section VIII.D., discussing the creation and expansion of copyright through Article 1.

105. Cf. Lea Shaver and Caterina Spanga, The Right to Take Part in Cultural Life: On Copyright and Human Rights, 27 WIS.INT’L L.J. 637 (2010) (discussing use of the International Covenant on Economic, Social and Cultural Rights as a basis for copyright-like protection).

established, we shall discuss a variety of possible IP rights that could flow from Article 1.

A. The General Principles of the ECHR’s Article 1 Methodology As the ECHR has noted on more than one occasion,107 Article 1 has two paragraphs that express three separate, but related principles. The first sentence of the first paragraph states a general principle, that one has a right to enjoy one’s possessions without interference.108 The second principle is stated in the second sentence, that one may not be deprived of one’s possessions, except under specified conditions.109 The third principle is contained in the second paragraph: the state can control the use of one’s property, provided it complies with the conditions of the paragraph, namely, that the control be consistent with the public interest.110 The second and third principles are regarded as specific instances of the first principle.111 Consequently, the first principle stands by itself; a violation of Article 1 can occur even if there is no total deprivation,112 and, apparently, even in the absence of an attempt by the state to control the use of the property.113 On the other hand, not all “interferences” with property under the first principle will constitute violations of Article 1. That principle also requires the state to strike a balance between protecting the individual and protecting “the general interest of the community.”114

107. See, e.g., Perdigão v. Portugal, App. No. 24768/06, ¶ 57 (Eur. Ct. H.R. Nov. 16, 2010) (Grand Chamber); Benet Czech, spol. S.R.O. v. The Czech Republic, App. No. 31555/05, ¶ 30 (Eur. Ct. H.R. Oct. 21, 2010); Maurice v. France, App. No. 11810/03, ¶ 78 (Eur. Ct. H.R. Oct. 6, 2005) (Grand Chamber); Sporrong v. Sweden, App. No. 7151/75; 7152/75, ¶ 61 (Eur. Ct. H.R. Sept. 23, 1982). See Hermann v. Germany, App. No. 9300/07, ¶ 74 (Eur. Ct. H.R. June 26, 2012) (Grand Chamber) (the second paragraph of Article 1 is to be interpreted “in the light of the principle laid down in the first sentence of the Article.”).

108. Convention, supra note 9, at protocol 1, art. 1. 109. Id.

110. Id. This requirement appears to preclude controls that are intended to favor one person or a small group of people. Support for this argument also comes from a principle added by the court, that is, one of balance between the rights of the individual and the rights of the society. See, e.g., Perdigão v. Portugal, App. No. 24768/06, ¶78 (Eur. Ct. H.R. Nov. 16, 2010) (Grand Chamber).

111. See, e.g., Maurice, App. No. 11810/03 at ¶ 78. 112. See Sporrong, App. No. 7151/75; 7152/75 at ¶¶ 67-74.

113. Id. at ¶ 65 (finding the second paragraph inapplicable). This would support the idea that affirmative state action is not a prerequisite to the application of this Article.

114. Id. at ¶ 69. In Sporrong, the city of Stockholm had been issued permits to take applicants’ land, permits that were extended for many years but never executed. Id. at ¶¶ 9-30. This was found to violate the first principle because the delays reduced the land’s value (constituting an interference with its enjoyment) and the inflexibility of the process provided no means to ameliorate the injury as the process dragged on. Id. at ¶¶ 70-74. This was a close decision; the vote on this issue was 10-9. Eight dissenters felt that the second paragraph of Article 1